Hennessey v Commissioner of Police, New South Wales Police Force [2019] NSWSC 1046

Supreme Court New South Wales

Medium Neutral Citation: Hennessey v Commissioner of Police, New South Wales Police Force [2019] NSWSC 1046 Hearing dates: 31 July 2019 Date of orders: 31 July 2019 Decision date: 31 July 2019 Jurisdiction: Common Law Before: Ierace J Decision: (1) Summons dismissed.

(2) No order made as to costs. Catchwords: CIVIL PROCEDURE – Application for stay of operation of license suspension pending appeal – no power to grant stay – application dismissed Legislation Cited: Road Transport Act 2013 (NSW), ss 266, 267 and 268 Category: Principal judgment Parties: Rebecca Hennessey (Plaintiff) Commissioner of Police, New South Wales Police Force (Defendant) Representation: Counsel: In person (Plaintiff) R Coffey (Defendant)

Solicitors: In person (Plaintiff) New South Wales Police Force (Defendant) File Number(s): 2019/00182613

Judgment 1. HIS HONOUR: On 7 June 2019, Rebecca Hennessey ("the plaintiff") received a roadside breath test and a breath analysis ultimately yielded a reading of 0.055, in other words, a reading slightly over the minimum lawful amount. 2. The plaintiff, in affidavit evidence in this matter, has stated that she was advised by police on that date or early the following morning that a reasonable basis of appeal by her against that offence may be to raise an issue of whether police had allowed a required period of time before conducting the analysis. It is unnecessary for me to go into that in any further detail. 3. The plaintiff is significantly affected both directly and indirectly by the three month suspension. She required a valid driving licence in order to maintain her employment. I am told by the plaintiff that the day following her suspension, her employment ceased, for the reason that she no longer had a driving licence. 4. The plaintiff also required her licence in order to transport her child, who has a disability. In particular, her child needs to attend speech therapy classes. Beyond that, transport is required in order for him to attend some sports activities. I understand that, as a result of the loss of her licence, the plaintiff has not been able to transport her child to some sports activities. 5. The plaintiff seeks in a summons filed on 12 June 2019, effectively, a stay of the three months suspension until the Court has heard an appeal against the finding that she failed a breath test, that is, a finding that she was over the limit. 6. The plaintiff initially came before the Supreme Court on 12 and 13 June 2019, appearing before the Duty Judge on those occasions. It appears that on the latter date, there was an understanding that the plaintiff may be able to prosecute an appeal at very short notice in the Local Court at Wyong. With that in mind, the matter was stood over to enable that to occur. 7. The following day, on Friday 14 June 2019, the plaintiff appeared in the Local Court at Wyong. The Magistrate and Police Prosecutor were understandably concerned that this matter coming before them was the first such matter following recent amendments to the Road Traffic Act 2013 (NSW) by the Road Transport Legislation Amendment (Penalties and Other Sanctions) Act 2018 (NSW). 8. Ultimately his Honour informed the plaintiff that he was unable to entertain an application by her to stay the period of suspension pending an appeal. It appears from the transcript that in some respects the Magistrate may have misunderstood the operation of the new law, but I emphasise that I am not being critical of either him or the Police Prosecutor given the novelty of the law at that stage and indeed at this stage. 9. I am satisfied that, in any event, there is no power under the Act for a court to stay the operation of the automatic three month suspension which is imposed following a low range blood alcohol reading. [DISCUSSION RE LEGISLATION] 1. That follows from ss 266(1)(b), 267 and 268 of the Road Transport Act. 2. The Court does not have power to either stay or vary a period of suspension, that is the automatic three month period, in particular, having regard to s 268(4)(a) of the Road Transport Act, even if the appeal is against the finding that the driver had a blood alcohol level above the prescribed limit. 3. That being so, this Court has no power to stay that penalty until an appeal is heard, or indeed at all, and therefore this Court has no power to make the orders that are sought by the plaintiff. 4. I note that the second reading speech to the amending legislation by Ms Melinda Pavey, the Minister for Roads Maritime and Freight, appears to confirm my understanding of the parts of the legislation I have referred to. Accordingly, the summons is dismissed. I decline to make an order for costs. 5. I make the following orders: 1. Summons dismissed. 2. No order made as to costs.